Originally published at Opinions on High, the Melbourne Law School High Court blog.

Australia’s first national laws to put a price on carbon were effective to their end; reportedlyleading to reductions in Australia’s combined greenhouse gas emissions. In their absence it has been reported that increases in emissions have resumed. While our new Prime Minister grapples with how to rein in these emissions, the High Court last year confirmed that the carbon price laws were lawful, and through the prism of the Constitution fair, to their end. The history books will show, however, that politicians failed to make the case for a carbon price law, but they devised and crafted a successful, if complex though geographically unfair, legal policy. Over the past few days the protagonist in the High Court case, Queensland Nickel, with the business faltering, has brought claims of fairness into the political discourse around this business’ carbon intensive operations.

The High Court concluded that the additional financial liability imposed on Queensland Nickel relative to other refineries in Western Australia that triggered the case was not a cause of a difference or discrimination on the grounds of physical or jurisdictional geography but a result of past decisions made by Queensland Nickel on purely financial grounds. The effect of the laws as experienced by Queensland Nickel relative to its Western Australian competitors may have had an increased financial burden on Mr Palmer’s company, which has not been attributed to the company’s financial woes, but that burden was not attributable to the law; rather business decisions made by the company in its infancy.

In the High Court case, Nettle J adopted the plurality view in the Fortescue Metals case, and found that the particular parts of the carbon price regulation that set out liabilities for nickel refineries ‘did not discriminate between States. In terms, it applied equally to eligible persons carrying on the production of nickel regardless of the State of production’ (at [56]). Although Nettle J acknowledged a difference in practical effect of the laws for Queensland Nickel, he considered that ‘in this case it does not appear that any of the differences between the plaintiff’s and the Western Australian nickel producers’ inputs, production processes or outputs were due to differences between Queensland and Western Australia in natural, business or other circumstances’ (at [58]).

Instead, Nettle J focussed on past decisions about mining processes as giving rise to the different effect of the laws. The mining process adopted by Queensland Nickel was found to have been the reason for the greater financial burden under the laws. Although Nettle J conceded that the mining process decision ‘was informed by geographic considerations’ (at [61]), the decisions were ultimately based on delivering to each firm the greatest possible financial windfall at the time the decisions were made in the historical technological settings.

This conclusion, which eschews considerations of the geography of place, effect, and time in preference for considerations of financial autonomy offers an appropriate and consistent ending for the Clean Energy Act 2011, because financial interests trumped geographic interests and fairness throughout its invention, implementation and repeal.

The carbon price laws and unfairness

In the lead up to the last federal election Clive Palmer claimed to have advice that the carbon price legislation was unconstitutional, drawing in the then federal opposition leader, Tony Abbott, and then Queensland Liberal National leader Campbell Newman in support of his case. One of the frames developed to oppose the carbon laws was fairness and justice. This particularly included fairness to Australia internationally and fairness for businesses in Australia, especially those smaller businesses facing higher electricity costs, and fairness to families facing higher electricity costs (not all caused by the carbon price laws). At that time, in 2013, however, opposition to the laws was not widespread or strong, with most people ambivalent towards them (as distinct from the deeply felt opposition to the then Prime Minister’s popularly understood broken promise not to introduce a carbon tax). Moreover, opposition to the carbon price laws diminished further in the year following the election of the Tony Abbott led government and in the lead up to their repeal.

There could have been a more sophisticated level of opposition to the laws, not triggered by the financial costs created by the laws (as that was their very deliberate intention), but based on geographic fairness. By geography I mean the distribution between places and jurisdictions and across space, time and scale of social, environmental, political and economic advantages and burdens, whether deliberate or consequential.

The remainder of this short piece tries to record those geographic bases for opposition to Australia’s recent political and legal responses to the issue of carbon emission reductions, which, unlike Mr Palmer’s claims, did not rise to prominence in law or the media. With Mr Palmer’s recent attempt to deploy a discourse of fairness in the context of the financial predicament of Queensland Nickel it is a timely to record these fairness bases.

Geographer Lesley Head has demonstrated that those Australians with lowest incomes experienced the greatest burden of reducing emissions from electricity use under the carbon price legislation. In contrast, the rich simply paid more to run their air conditioners and wine fridges. Indeed, any consideration of the distribution of effect of climate policies and laws across the spectrum of advantage in Australia is typically not prioritised. The recent history of Australian climate policy has examples of ignorance of their geographic fairness, and the discourse of ‘climate justice’ is rarely highlighted in this country while claims about financial business injustices are.

Moreover, the way the carbon price laws were comprised and then administered demonstrated a lack of concern for geographic fairness in place of economic purity and attention to dominant financial interests. For instance, the laws were ultimately not accompanied by regulations that mandated improvements on those coal-fired generators that disproportionately affect carbon exposed communities. Rather the laws did include exemptions to protect trade-exposed business. Moreover, the promise to close down the least efficient power generators in order to achieve significant additional reductions, and indirectly improve the environmental health of the host communities, came to nothing. The long-advocated greenhouse trigger for environmental assessments in the federal Environment Protection and Biodiversity Act 1999 (Cth), which would have protected more communities from future pollution, was dismissed again — this time as being incompatible with the market approach of the carbon price regime.

While the High Court’s approach to the issue of the geographic effect of the carbon laws was cursory, that should not leave us to think that the recent and current approaches to carbon emissions reduction laws and policies passed the geographic ‘fairness’ test. Rather, these laws created and have embedded geographic discrimination of a type that s 99 of the Constitution is unable to redress.

Queensland Nickel’s financial struggles and retorts to fairness

As for Mr Palmer’s claim that the Queensland government should have guaranteed Queensland Nickel’s immediate financial security on the basis of fairness, that’s far more difficult to unpack. As Antony Green alludes to it seems that Mr Palmer was attempting to use ‘fairness’ as a slogan in the same way the present government has for its current reform agenda: an agenda focused on matters economic and overlooking the geographic unfairness of climate change law and policy. Lost also in the framing of the debate by Mr Palmer, but identified by the Queensland opposition, is the fairness of the State potentially being called upon to rehabilitate the refinery site lest the local community continue to bear environmental harms without any economic advantages from the operation of the refinery.

However, I want to start my presentation by taking you back a couple of years to the report that saw this organisation shift its attention, and ultimately its name, towards concerns of environmental justice.

In that report, the final report of the Environmental Justice Project (pdf), the Environment Defenders Office (‘EDO’) – as it then was – explained an absence within Australia of a narrative – or movement – for environmental justice and a policy gap in the promotion of environmental justice principles throughout the country.

For those of you unfamiliar with the concept of environmental justice it is a term with an evolving definition: it is defined differently depending on context and perspective. What links the definitions, however, are two concerns about fairness.

First, fairness in terms of where environmental harms are situated. In this respect the concept is understood as having distributional or geographic aspects.

Second, a concern about fairness in decisions about projects or policies that are perceived as having environmentally harmful effects – wherever those effects may be located. So in this respect the concept is also understood as having procedural or political aspects.

When understood at its most basic level within these two terms, I am sure you will agree that for many decades these concerns about fairness have been evident in Australia. I am confident that each of you could recall a case, a project, a decision, a pollution event that either gave rise to concerns about distributional unfairness or procedural or political unfairness.

Some readers of the EDO’s Environmental Justice Project Final Report, however, suggested that the concept of environmental justice is novel to Australia: that the EDO’s work was the first time that environmental justice had been brought into view in Australia. That is not accurate. A review of the footnotes of the EDO report makes plain that there has existed and been recorded for a period of time in Australia events and literature on environmental justice.

In fact, the experience of air pollution in Australia allows you to trace environmental justice concerns for decades. The graphic locating geography hot spots of air pollution in the Environmental Justice Australia report, (pdf, see page 16), offers you an opportunity to reflect on how long those spots have been presenting distributional, unfair health problems to those communities. They have not just appeared over the past two years.

The principal messages in my presentation today, drawn from my research and also what I learned in putting together and recently teaching the subject Toxics, Waste and Contamination Law is that environmental justice concerns have played a part in our pollution laws over the past 40 years.

It is only now are we as a community of scholars and of individuals beginning to frame our laws as being directed to achieve environmental justice. The report we are discussing tonight is part of this movement; part of the trend.

I want to offer two potential reasons for this interest in environmental justice: not simply the concepts but also the words, the discourse, the phrase, the term.

First, we are seeing demands that human health impacts be a priority when governments respond to incidents and reports of degraded environments and, associated with that, a second potential reason (and this is somewhat preliminary and speculative) is the displacement, in the view of non-government entities, of sustainability as the predominant policy goal of environmental laws.

To reach these conclusions, however, it has been necessarily for me to take what is becoming an unconventional route to understanding what environmental justice means.

The conventional route is to see environmental justice as having emerged from the environmental racism movement in the USA, exemplified by the incident in the late 1970s and early 1980s in Warren County where abandoned chemical wastes were relocated in the face of African America led opposition to a tip created in the least wealthy and least white county in North Carolina.

A less specific, less limiting and arguably more global and less instantaneous, alternative starting point for the emergence of environmental justice is in the anti-toxics movement.

Political scientist John Dryzek traces the discourse of environmental justice to this movement and social scientists Buell and Szasz also separately reached this view.

For them ‘toxic’ was and is a word of political power and an expression and encapsulation of human health concerns. Szasz writes of toxic as ‘icon’, a rallying point. Buell writes of the ‘global rhetoric’ of toxicity predating the 1970s. Dryzek notes the difficulty in disproving toxicity: hence it has symbolic and political power.

Toxic was proxy – for justice, for fairness, for protection of human health. It remains so. You are also likely seeing it appear more in our environmental language. Alkon et al in recent scholarship in the journal Local Environment argue that we should not always be looking for environmental justice as a term to understand its meaning and force, but to be mindful of proxy terms.

So if you are looking for a narrative of environmental justice in Australia a search for concerns and complaints about toxicity can be a proxy. You are all likely aware of the long standing National Toxics Network. Some of you might be aware of the book Local Heroes edited by Kathleen McPhillips which recounts incidents of toxic pollution and threats around Australia, including at the periphery of Coode Island here in inner Melbourne. These, as well as some of those locations in the pollution hot spots map, are Australia’s early stories of environmental justice. They date for decades.

What is central in the toxics terminology is the human – toxic effects on humans. So having sketched out a path for you to see environmental justice as having resonated through our experience of pollution laws, I now want to turn to emphasise the centrality of human health to those concerns. To show the parallel experience of health and toxicity in our modern environmental laws.

Former federal MP Lindsay Tanner, in his co-authored 1978 book, The Politics of Pollution, pinpoints the proposal for the Carrum sewerage treatment plan with an effluent pipeline into Port Phillip as a trigger for the public to demand a comprehensive pollution control regulatory system in Victoria: a system that would protect the “quality of life” of the public. Tanner’s book also records the election promise of the Bolte government to create the Environment Protection Authority in May 1970 in response to community demands for government intervention to control pollution for their benefit.

While these laws have changed over the past 40 years, particularly in the post-Rio legal sphere, and while governments have repositioned the laws to achieve environmental protection and meet principles of sustainability, recent reports analyzing the conduct of the Environment Protection Authority reiterate that in the community’s view these are laws ought to protect them, their well-being and their health, and that their health has been missing from the agency’s regulatory enforcement activities.

My research has also led me to suspect that if the community ever signed up to the concept of environmental sustainability it has since signed off.

With Annette Jones I reviewed submissions to human rights dialogues, which clearly (and perhaps naturally because of the subject matter) prioritized human well-being, particularly of the most vulnerable in the community, over environmental sustainability and protection concerns. This was so even when governments invited submitters to consider explicitly a right of ‘environmental sustainability’, as the Tasmanian government had proposed. There the Tasmanian people rejected that right in preference to a right to a healthy environment.

The issue of human health as a regulatory priority of pollution laws will be explored in a forthcoming volume of the Michigan Journal of Environmental and Administrative Law. In the introductory essay by Uhlmann, he notes that:

“I would submit that the environmental laws themselves are human-centric … Our environmental laws focus on the need for pollution prevention to protect public health.”

He argues that in contemporary times: “We regulate hazardous waste, … when it has the substantial potential to be harmful to “human health and the environment (in that order).”

Ulhman is not alone in suspecting an internal US change in approach to greenhouse gas emission regulation (with human health as its core) is symbolic as well as pragmatic. In the same volume he notes that Tracy Bach presents research that shows the community is more likely to accept greenhouse gas regulations if climate change is understood as a human health issue. Bach, an environmental pragmatist, argues that we should attempt to secure atmospheric environmental protection through human interest.

Elsewhere in the US, the need for change climate regulatory responses are framed in environmental justice terms in order to persuade regulators to require emissions reductions from power plants rather than letting markets do that work so that communities that host energy infrastructure should see real benefits and changes in the quality of the air that they breathe. President Obama, admittedly with limited alternatives, has responded in a manner that his advisors claim responds to environmental justice and the claims of environmental justice advocates to limit emissions in vulnerable communities.

So, I want to bring you back to environmental justice in Australia. Now, perhaps as a result of the EDO’s two-year old report, we are seeing a clearer and more conscious and deliberate engagement with the concept in Australia. Chakraborty and Green have produced and analysed National Pollutant Inventory data maps with social advantage data showing a clear and strong correlation in Australia between a lack of advantage and presence of potentially harmful pollutants.

Moreover, Felicity Millner (pdf) from Environmental Justice Australia has written about the need to achieve fair access to justice in the environmental law field in Australia. This organization may take on a role as justice advocate, a role that Alkon et al identified as important in driving the environmental justice narrative, and the Clearing the Air report challenges us to confront and come up with a way to respond to an environmental injustice.

Readers might recall that when public opposition, and threats about constitutional challenges, to the minerals resource rent tax was at its height, there were similar discussions about the carbon price legislation (the Clean Energy Act 2011 (Cth)). Here is an opinion by Professor George Williams from the time foreshadowing the likely constitutional objections to the mining tax and carbon price.

Having reviewed that writ, it is apparent that the future of Australia’s carbon price is destined to be decided at the forthcoming election, and not by the High Court afterall. This is because the writ does not attack the legislation that creates and embeds within the economy the mechanism for pricing carbon. Instead, what Queensland Nickel is challenging is the constitutionality of the way the compensation scheme for trade exposed polluting industries was devised under separate regulations. Queensland Nickel argues that the compensation scheme discriminates across the states, inconsistently with section 99 of the Constitution, because it advantages some states, like Western Australia, over others, including Queensland. It does not challenge the carbon price.

As the pace of international climate negotiations has slowed, the interest and attention of international organisations and climate policy watchers has been diverted to national climate change responses.

We recently attended a gathering in the United States of policy-makers, lawyers and scholars from Australia and California, and got the impression the carbon price has given Australia negotiating clout. While presentations were being made inside the conference venue, outside Australian government officials, led by Parliamentary Secretary for Climate Change and Energy Efficiency Mark Dreyfus, were discussing linking Australia’s carbon price scheme with California’s cap-and-trade system.

California has recently linked its now operational cap-and-trade system with Quebec. There is a real possibility of Australia linking its carbon price with California’s and further extending and entrenching cross-border carbon markets. In the next five years we might see Australian emissions reductions or emissions offsets being transferred between companies in Perth, Rome, Los Angeles or Montreal.

The contextual differences

There are contextual differences that Californian and Australian negotiators have begun to explore as a precursor to striking any deal to link carbon schemes.

As Australian legal scholars, including Godden and Prest have noted, Australia’s carbon policy has been framed by economics and market theory. Bureaucrats have acknowledged that Australia’s carbon laws are not environmental laws. They are laws that create a carbon market.

The Californian cap-and-trade system reflects a broader stakeholder concern than in Australia, and is described as a “back-stop” by the agency that designed and will implement it. It is only needed to address those carbon emissions that are not mitigated through the range of other environmental regulatory measures. These include:

ratcheting emissions and fuel standards;

bans on the expansion of coal and fossil fuel generation;

prohibitions on the purchase of carbon intensive fuels; and

statutory obligations on utilities to find energy efficiency savings.

Cap-and-trade is only expected to meet 20% of California’s emissions reduction target, whereas in Australia the carbon price is expected to deliver most of, if not all, Australia’s emissions reduction target.

Just as it did when negotiating its EU deal, Australia might need to modify its carbon legislation should California seek greater complementarity between systems.

Ultimately, we do not see the broader contextual differences as a barrier to linking. Once Australia’s scheme converts from a fixed price to a trading scheme, the structure and operation of the carbon pricing regimes will be fundamentally the same across both jurisdictions. There will be general compatibility between emissions reductions and emissions offsets, even if California’s scheme is only intended to achieve a minor proportion of its mitigation objectives.

The barriers

There are barriers that could delay or frustrate linking. There are reports California is concerned about the lack of an auction reserve price in Australia. While this has price implications, it is not a barrier to linking. Removing a price floor (and associated reserve price) was a feature of the European system that Australia adopted. California may also drop the feature if it wants to connect with Europe.

A more substantial barrier, in our view, is that despite California being a larger economy with a bigger population than Australia, it lacks international personality. Australia cannot negotiate a treaty with California to formalise any system connections. Both jurisdictions will likely be limited to non-binding memoranda of understanding and regulatory endorsement of each other’s schemes. Australia will face the risk of Californian regime change should the Unites States federal government limit or implement a carbon market.

A related issue is that Australia will need reassurance from the United States government that it will recognise Californian emissions reductions at the national level and in a global climate change agreement. It will also presumably be necessary to get the EU on side with such a link. This is because ultimately, once linked, Californian offsets allowed into Australia, at least indirectly, will also flow into the EU emissions trading system.

The prospects and opportunities

There is one positive to not being able to formalise the linking of schemes with a treaty. It means linking can be achieved relatively quickly, as was the case with the arrangement for one-way linking with the EU. We therefore do expect some form of linkage soon, possibly ahead of the Australian federal election.

The simplest way would be to link through offsets. California has a similar offsets mechanism to Australia’s Carbon Farming Initiative, covering the land and agricultural sectors. An initial link could be agreed through a one-way or mutual recognition of these domestic offset credits. For instance, emissions reductions generated by the capture of methane at landfills or the planting of vegetation could be traded between the two schemes.

This option was raised in the public discussions last week. California is currently seeking comments on using offsets from linked schemes. Significantly, the recognition of Californian offsets in Australia’s scheme could be achieved without further amendments to Australia’s carbon legislation.

There are significant political and structural opportunities for linkage for both Australia and California. California will continue to lead the United States, as it desires, on climate change – reaping the rewards of innovation and the plaudits of progressive law-makers. And it will continue to exert political pressure on the Obama administration to act.

For Australia, the more credentials it receives and the more connected its carbon price becomes, the more difficult and humiliating it will be for any future Coalition government to extricate itself from the system. This is a win-win scenario for the current government both politically and for its approach to taking action against climate change.

This article was co-authored by Katherine Lake, Senior Associate in the Climate Change and Energy Practice at international law firm, Ashurst.

Brad Jessup is a member, and owns a share, of Hepburn Community Wind Park Co-operative Ltd, a community-owned wind farm in rural Victoria, and is a member of the Victorian Environment Defenders Office. He has previously received funding from the Energy Pipelines CRC.

Katherine Lake does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.

Here is a presentation I gave at the EDO/CREEL Environmental Justice Symposium:

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I want to present two somewhat related thoughts to you today about why environmental justice matters.

The first thought is: that environmental justice matters because the concept of ecological sustainable development has failed – ESD has become a catch-phrase, has always lacked meaning, and certainly no longer prioritises environmental protection and conservation. The concept of ecological sustainable development is not used to improve the livelihood of the least advantaged among us. The ecological modernists, and even the ecological industrialists, have employed the notion to achieve their ends, be they environmentally benign or destructive. Moreover, a legal system designed around an environmental justice framework might have caused decision-makers and ourselves greater reason to doubt the appropriateness of government decisions made about the environment and development.

This thesis is demonstrated by three Australian case studies which are the subject of my current research and which explores the aspects of distribution, recognition, participation and capabilities that David Schlosberg has identified as being components of a multi-faceted, hybrid and plural notion of environmental justice.

It is demonstrated in a battle over a landfill in rural NSW where the law at first intervened to halt a project that would have cross-generational adverse impacts on the rural future of the people of the township of Molong, whose landscape would include the home of a landfill and recycling plant owned and operated by, and servicing the people of, the neighbouring city of Orange. Later, however, the law allowed the court’s concerns to be downplayed as the project was rebadged as one of the most sustainable waste projects of state importance. The landfill was approved. The community was left with no meaningful avenue to the courts to challenge a dubious legal conclusion reached by the NSW Minister for Planning.

It is also seen in the environmental assessment process, an archetype of sustainability law, for the Channel Deepening Project here in Victoria, and was especially evident in the process for the sugarloaf pipeline, where the environmental law failed to guarantee expected and typical rights to participate in the project evaluation process in a meaningful way, a process already designed to advantage industrialist proponents.

It was evident in the dispute over logging in Tasmania’s Wielangta forest, where the ‘ecologically sustainable’ Regional Forests Agreement – a model of sustainability policy – was found to allow the endangerment of species the RFA was supposed to conserve and protect. While the court at first instance concluded that the law required an assessment to be undertaken before any activity would further diminish threatened species populations and the species’ capacity to flourish, the executive governments of the Commonwealth and Tasmania devised a work-around to permit logging in the forest despite its adverse impacts on the ecosystem.

My second thought about why environmental justice matters is that a principle of environmental justice is an important moderator of some our collective environmental enthusiasm. It should make us think before, as a community, we are seduced by the promise of environmental benefits using relatively novel policy approaches.

Last month I returned from a half-year research stay in the San Francisco Bay Area where environmental justice issues are raised and pursued by a number of grass-roots non-profits whose focus is on improving the environmental health of California’s most disadvantaged communities. While often the environmental justice groups work alongside traditional environmental groups, they have recently lined up against them in court.

The issue that has demonstrated a disjuncture between community-focused environmental justice groups and mainstream state and national environmental groups has been the Californian Government’s decision to adopt a cap-and-trade mechanism to reduce its greenhouse gas emissions.

The environmental justice groups succeeded in court by arguing that the government had failed to follow the process required of it in law because it did not evaluate alternative options for reducing greenhouse gas emissions – particularly a carbon tax – or indeed regulatory limits on emissions. The environmental justice movement’s concerns about a cap-and-trade mechanism include that there is an ability under that system to offset emissions. This might lead to total emission reductions but will not have the associated benefit of reducing the local pollution in some of California’s most polluted areas. They argue that the only fair way to reduce greenhouse gas emissions is to reduce them at source, and at every source.

The policy setting has already led to the development or proposal of new, more efficient and sustainable gas fired power plants – a cluster of them (each power plant just coming under the human health emission limit triggers for assessment and mitigation requirements – collectively they are over the limits). They are being built or proposed around the poor township of Richmond, though much of the power will be used in San Francisco where polluting power plants were closed owing to the lobbying efforts there of a wealthier and empowered community.

The path agreed upon at Durban is much the same as the path the world has been heading at least since Bali. We have known that the successor to the Kyoto protocol will be an ‘all-in’ agreement, with all nations taking on some responsibility to reduce emissions. Insofar as the nations within the UNFCCC all remain committed to reducing emissions we should be considering the outcome a positive one.

However, not much progress can be seen in the words negotiated at Durban on the important matter of what agreement will be reached about future emissions reductions. Certainly there is no clarity about the obligations that will be imposed on nations with the most advanced economies and those nations with emerging economies in a future agreement. In particular, the world has not agreed on what is fair for developed nations to expect of developing nations and how much responsibility developed nations should take for their past carbon excesses.

But there is clear progress nonetheless. This is particularly evident if you look at the lead protagonists. Australia has forgone its role as the churlish spoiler, despite the fact that it remains steadfastly supportive of the US and entrenched in the Umbrella Group of developed nations who operate as dampeners and delayers of progress.

The passage of the carbon price legislation means that our nation is no longer a frustration to global progress. And we were long a frustration. Durban has showed us that nations like China and India would not be put in the spotlight until countries like Australia committed to reduce its emissions. Compared to past meetings China, by all reports, appears to be have been less steadfast. It was India, whose voice has only started to be significant in negotiations as other polluting nations like Australia came on board, that spoke loudest in the end.

And from the US, you would not even know that the meeting was taking place. Global negotiations on emissions reductions seems to have no traction with the media, with the current to-ings and fro-ings with the Republican nomination and European financial crisis entrenched in the news.

The bill creating the carbon price has passed through Parliament. However, the campaigning efforts of the environmental lobby will not pause. More than ever, the coal industry is in its sights, with court cases against XStrata in Queensland and HRL in Victoria now underway.

Getting regional Victoria’s Hazelwood power station closed is a potential prize from the cross-party climate deal that gave us the climate price. But it will not realise campaigners’ ultimate goal of a carbon-neutral economy.

Environmentalists know that they have achieved all that they can for the moment through the legislature. For decades, politicians’ attention has been captured by Australia’s most greenhouse intensive industries. Throughout the carbon debates, environmentalists have not been able to avert that attention.

Recommendations were made for legislative reform that would institute a greenhouse gas trigger for environmental assessments under the Environment Protection and Biodiversity Conservation Act, but these have been ignored or rejected. The Gillard government has been convinced by the yet-to-be proven argument that a market mechanism – the emissions trading scheme – will curtail emissions-intensive industrial developments as effectively as scrutinising, evaluating or simply prohibiting them.

The courts are the next stage for the environmentalists’ battle against coal.

Past efforts at halting coal mining activities and power generation activities through the courts have been unsuccessful. Australian courts and tribunals have held that in some circumstances, decision-makers must consider the greenhouse gas emissions from coal-fired power in deciding whether to approve coal mines and power stations.

But these decisions have not stopped projects. They have simply required ministers to explicitly preference the promised economic windfalls from coal mines and power stations over environmental objectives.

Most notably, the Federal Court has twice rejected challenges to New South Wales and Queensland coal mines. The court was not satisfied that there is a sufficient link between localised burning of coal and climate change to prove that carbon emissions could have “significant impacts” on the Australian environment, particularly on ecosystems like wetlands and reefs, which are highly vulnerable to sea level height and temperature change.

Two cases currently before state courts and tribunals take a different legal approach. Environmental groups have joined with sympathetic lawyers to bring suits against coal that will subject the coal projects to merits assessment.

This case is not simply a challenge to the environment or planning approval for the project. Rather, the environment group is also seeking to prevent the grant of the mining tenure required by Xstrata. They are arguing that the coal mine, which will be Australia’s largest and will principally service the export market, will indirectly and notably contribute to climate impacts that are “irreversible, of a high impact and widespread”.

Under the relevant law, the Friends of the Earth must convince the court that the adverse impacts of the mine are of such a magnitude to justify its rejection. It is a case that has parallels with the long-fought battle against sand mining on Fraser Island, which started in the Mining Warden’s Court of Queensland in the early 1970s and made its way to the High Court.

In Victoria, a group of environmental objectors, most publicly led by Environment Victoria, are party to a current Victorian Civil and Administrative Tribunal case. It concerns the works approval the Environment Protection Authority gave a combined coal- and gas-fired power plant proposed for Victoria’s Latrobe Valley.

The legal question for the tribunal is whether this project, characterised by the proponent as a clean coal alternative to the status quo, is “best practice” to manage greenhouse gas emissions. Does polluting less than the typical coal-fired power station – but far more than generation from gas or renewables – correspond with best practice standards?

The tribunal’s finding will be significant because it will also inform us whether Victoria’s new Climate Change Act, which must be considered in this case, actually stands for something.

Regardless of the outcomes of these cases, court battles between coal companies and environmentalists will continue. Legal alliances are being formed. Landholders, like those in Bacchus Marsh close to Melbourne, have been emboldened by the coal seam gas outrage initiated by farmers throughout New South Wales and Queensland and appear likely to join the fold.

Proposals to halt new or expanded coal developments will be opposed. Existing facilities, like Delta Electricity’s Lithgow plant – the subject of community-initiated court claims over pollution – will be scrutinised. The battle is important because it might just change public sentiment and government opinion about the future of coal in Australia.